Spying and the Public's Right to Know

The New York Times has disclosed that George W. Bush secretly waived rules restricting electronic surveillance inside the United States, allowing spying on hundreds of Americans that normally would require a court warrant. But almost as stunning was the Times admission that it had held the story for a year.

Indeed, it appears the information about Bush's secret spy order was leaked before Election 2004, but was kept from the American people because the Bush administration warned Times executives that the story's publication might endanger national security.

In finally publishing the story on Dec. 16, more than 13 months after President Bush won a second term, the Times gave few details about specifically why it withheld the story in 2004 and then decided to print it now.

The article stated that "the White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting."

In the final weeks before Election 2004, Bush administration officials might have been nervous, too, that the revelation that Bush had asserted broad presidential authority in overriding legal constraints on domestic spying could have played into the hands of Democrat John Kerry. But there is no indication that political concerns were raised with New York Times executives.

Still, there is an unwritten rule in elite U.S. journalism that sensitive stories should not be published in the days before an election so as not to skew the outcome. A countervailing view holds that newsworthy information should be reported to the American people whenever a story is ready, regardless of the political calendar.

Journalistic compromise

The Times announcement that it withheld the electronic spying story for a year comes on the heels of other questions about the Washington press corps' alleged subservience to the Bush administration, especially since the Sept. 11, 2001, terror attacks.

Times reporter Judith Miller resigned Nov. 9, 2005, amid criticism that she showed a lack of skepticism in stories about Iraq's efforts to obtain a nuclear bomb and other weapons of mass destruction. Senior administration officials had cited Miller's WMD stories while making their case for invading Iraq in 2002 and 2003, but those WMD claims turned out to be untrue.

Miller also resisted a federal subpoena for a year to protect a source, vice presidential chief of staff Lewis Libby, who had told her about the identity of a CIA officer married to an Iraq War critic. If Miller had agreed to testify before a grand jury earlier, the information about Libby's role in the CIA leak case might have come out before Election 2004, too.

Special prosecutor Patrick Fitzgerald said after finally securing Miller's testimony and then Libby's indictment -- on Oct. 28, 2005 -- "I would have wished nothing better that, when the subpoenas were issued in August 2004, witnesses testified then, and we would have been here in October 2004 instead of October 2005."

However, it's unclear whether a pre-election New York Times article about Bush stretching his presidential authority to allow warrant-less electronic spying inside the United States would have helped or hurt his campaign for a second term.

Some voters might have seen Bush overturning spying restrictions as a signal that he would do whatever was necessary to prevent another major terrorist attack. But other voters surely would have viewed Bush's assertion of such broad powers as further evidence that he disdained constitutional protections for the American people.

Spying rules

In its Dec. 16, 2005, article, the Times reported that in the months after the Sept. 11 attacks, Bush signed a secret executive order authorizing the National Security Agency to eavesdrop on Americans and others inside the United States without court-approved warrants that are normally required for domestic spying.

The Times reported that under this Bush order, the NSA monitored the international telephone calls and international e-mails of hundreds and possibly thousands of people inside the United States. Officials told the Times that spying on purely domestic communications still required a warrant from a special federal court that exists to handle requests for national security wiretaps and eavesdropping.

Some NSA officials considered the Bush-authorized spying program illegal and refused to participate, according to a former Bush administration official cited by the Times. "Before the 2004 election, the official said, some NSA personnel worried that the program might come under scrutiny by congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president," the Times reported.

It was during that time period when the controversy over Bush's order began to surface. "In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it," the Times reported.

The information also was making its way to some reporters and a version of the Times story reportedly could have been published before Election 2004. But it remains unclear how much detail the extra year of reporting added to the Times article. When finally published, the story started on Page One and covered a full page inside.

A bigger question for American citizens, however, may be why leading U.S. news organizations, such as the New York Times and the Washington Post, seem so committed to advancing the Bush administration's foreign-policy agenda -- while also protecting its political flanks.

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